Victory in Poulsen FOIA case

In April of 2006, Wired News editor Kevin Poulsen sued the United States Customs and Border Patrol under the Freedom of Information Act. Poulsen won the case, and yesterday the trial court granted Poulsen $66,000 in attorney's fees.

Poulsen had asked CBP to disclose under the FOIA documents about a computer failure suffered by the US VISIT system, which was established to screen foreign nationals entering the country against terrorist watch lists. CBP refused, then asked Poulsen to drop his request, then denied the request. claiming that if the public knew what caused the outage, it would harm national security, among other reasons. Poulsen believed that if the problem was fixed, as it should have been, the public had a right to know why the US VISIT computers were malfunctioning.

Poulsen, represented by the Center for Internet and Society and the Cyberlaw Clinic, filed suit. CIS attorney and Associate Director Lauren Gelman was the primary supervisor and lead attorney on the project.

On summary judgment, Judge Illston in the Northern District of California ordered CBP to release documents and the documents revealed that the computers were infected with the Zotob worm, a common Microsoft Windows vulnerability.

Poulsen published two articles on the problem as a result of receiving the documents. (April 12, 2006) (November 2, 2006), (also redacted and unredacted document comparison).

The Zotob infection and CBP's management of it was one of many technological and bureaucratic problems that ultimately led the government to abandon the US VISIT program, after almost two years and $1.7 billion dollars. Talk about information the public has a right to know.

Cyberlaw Clinic student Megan Adams did fantastic work on this part of the case, writing the complaint and the summary judgment pleadings. Gelman successfully argued the Summary Judgment motion.

Having prevailed, the FOIA says Poulsen is entitled to attorney's fees, but CBP continued to fight him every step of the way. Poulsen had to file a motion for fees, which Cyberlaw Clinic student Jeff Laretto wrote and prepared to argue at the hearing originally set for Friday, January 19th. The hearing date was vacated with Judge Ilston ruled for Poulsen based on Laretto's moving papers, granting $66,000 in attorney's fees. Judge Ilston's order included findings that Poulsen's reporting created a public benefit, and that the CBP was not reasonably justified in denying him the documents in the first place.

In addition to Gelman, Adams and Laretto, and of course, Mr. Poulsen, thanks for their help with various aspects of the case goes to our legal assistants Lynda Johnston and Amanda Smith, CIS residential fellows David Olson and David Levine, Fair Use Project Exec. Dir. Tony Falzone, and students in the Cyberlaw Clinic in the Spring 2006 and Fall 2006 semesters.

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